Legal Theory Commons^™

Hammurabi’S Laws: Ancient Traditions Of Violence, Aaron Secrist

The Confluence

The tradition of enforcing private property through violence is truly ancient, and goes back thousands of years to the first civilizations. There exists a prevailing attitude that contemporary culture is more “civilized” than the first organized societies – and while it’s true in some ways, our laws are still remarkably similar to those practiced in antiquity. In the following essay, I analyze the Law Code of Hammurabi and examine its parallels to the way laws function today. First, I will provide context for the technological advances that made the first city-states possible, then give a cultural and economic overview of …

From Classroom To Courtroom: Understanding Real Pathways Into Legal Careers, Timothy S. Troxel

Theses/Capstones/Creative Projects

This study examines how legal professionals describe their preparation for legal and law-adjacent careers, with the goal of identifying practical guidance for college students entering the field. Existing literature on legal career preparation often emphasizes measurable qualifications, while offering broad or generalized advice. At the same time, research on career development highlights the importance of experiential learning and mentorship, suggesting a gap between formal guidance and lived experience. To explore this gap, this study conducted interviews with ten legal professionals across a range of roles and experience levels. Participants were asked about their backgrounds, career paths, skill development, and other …

Complexities Of Appellate Law: Experiences And Perspectives Of Utah Indigent Appellate Attorneys, Whitney Howey, Stephanie Kathan, Jeremiah W. Jaggers, Chris Cambron

Qualitative Criminology (QC)

"Indigent appellate attorneys experience high stress due to their unique roles and responsibilities. Very little scientific research examines the lives and experiences of attorneys in the workplace. Characterizing and describing the variety of complexities and challenges Utah appellate attorneys face within their work provides information towards filling the profession’s gaps, stressors, and occupational needs. A sample of five Utah appellate attorneys were interviewed to better understand their perspectives and experiences in the workplace. We used thematic analysis to identify themes related to Utah appellate attorney experiences and perspectives. We identified four major themes from the data, including Personal approach, Working …

The Search For Unenumerated Fundamental Rights, Alina Sluzhyvenkova

Student Theses and Dissertations

There are certain rights that are explicitly enumerated in the Constitution, e.g., right to bear arms, right to free speech, right to a speedy and public trial. There are also rights that aren’t specifically written out but are nevertheless enjoyed by people nationwide. Rights that aren’t explicitly mentioned in the Constitution, but which are fundamental to are called the unenumerated rights. Unenumerated rights are just as important and can be derived from natural law, enumerated rights, the Ninth Amendment, precedents, judicial opinions, and substantive due process.

Substantive due process is a principle guaranteed by the Fifth and Fourteenth Amendments, which …

Putting A Slam On Alcohol Violators Through Dram- How The State Of Ohio Can Improve The Day-To-Day Safety Of Its Residents Through Dram Laws, Steven Iwanek

Honors Projects

In the realm of legal frameworks governing the service and consumption of alcohol, Dram Shop Liability Laws play a pivotal role in holding establishments accountable for the consequences of alcohol-related incidents. These laws, known as dram laws, vary across states, delineating the responsibilities of alcohol servers and establishments in preventing the overconsumption of alcohol and the resultant harm. This examination delves into a comprehensive background of dram laws, particularly focusing on their historical evolution, their present implications, and the imperative need for refinement.

As societal dynamics and patterns of alcohol consumption evolve, so too must the legislative mechanisms designed to …

What Makes An Impartial Jury? Perceptions Of Jury Impartiality And Court Legitimacy, Joshua P. Freitag

Quantitative Social Science Undergraduate Senior Theses

In light of decreasing trust in courts at all levels of the American justice system, it is more important than ever to understand what affects people’s perceptions of the courts as fair, just, and legitimate. The Black Lives Matter protests highlighted a racial element to perceptions of impartiality in the jury system. Existing literature reveals a complex historical relationship between race and the jury, but little research has been done on public perceptions of race in the jury box.

With a novel two-experiment design using a survey instrument and a half White–half Black respondent sample pool fielded using Prolific, I …

The Role Of Recognition In Kelsen's Account Of Legal Obligation And Political Duty, David Ingram

Philosophy: Faculty Publications and Other Works

Kelsen’s critique of absolute sovereignty famously appeals to a basic norm of international recognition. However, in his discussion of legal obligation, generally speaking, he notoriously rejects mutual recognition as having any normative consequence. I argue that this apparent contradiction in Kelsen's estimate regarding the normative force of recognition is resolved in his dynamic account of the democratic generation of law. Democracy is embedded within a modern political ethos that obligates legal subjects to recognize each other along four dimensions: as contractors whose mutually beneficial cooperation measures esteem by fair standards of contribution; as autonomous agents endowed with equal rights; as …

Antitrust Philosophy And Its Impact On Rural Industry, Logan Gary Johnson

Honors Thesis

The United States is a nation steeped in values, and tradition. One of these values has always been the preservation of competition in the pursuit of liberty. The philosophical backing of America’s founding can be traced back to a handful of European thinkers, most notably John Locke. The connection between Locke, America’s founding, and continued struggles with antitrust enforcement are worthy of exploration. Though likely unintentional, rural communities have been left to deal with the impacts of weak antitrust enforcement in a number of key sectors. Chief of which is Agriculture. Consolidation is the new norm, with each stage of …

Against The Death Penalty, Charles Jessup

Departmental Honors & Graduate Capstone Projects

My thesis is an argument against the death penalty. Given that public support for the death penalty in America is at a half-century low (according to the Pew Research Center), the timing could not be more appropriate to examine the death penalty. This research project had a two-step approach: first, ethical theory-based arguments for and against the death penalty were examined. Following that ethical theory-based examination, real-world statistics were applied to these theories to test where they stand in modern society. The findings contained in this research project point to a clear reality that the death penalty in America is …

Time, The Calendar, And Centralized Power In Japan: Relying On The Research Of Yoshiro Okada, Hiroshi Saito

Japanese Society and Culture

When, why, how, and by whom was “time” combined with “law” in Japan? This paper scrutinizes the issue based on Yoshiro Okada’s research, especially his most important works: Nihon no Koyomi and his thesis “Meiji no Kaireki: ‘Toki’ no chuo shuken-ka.” It is thus possible to understand how the political authorities used the unification of the calendar system to demonstrate their power and to govern the lives of the nation. Thereafter, “time” was used as a fundamental and important standard for judgment in the science of law, legalism, and the rule of law. In this process, “calendar (time) and law” …

Speaking Volumes: The Failure Of American Courts To Address The Underlying Themes Of Silence And Patriarchy Within The Civil Order Of Protection Process In Davenport, Iowa, Catherine Priebe

Sociology: Student Scholarship & Creative Works

Domestic abuse is a pervasive issue within the United States. Approximately three women will be murdered by an intimate partner every day and around half of all women will experience psychological abuse by an intimate partner in their lifetime. As such, it is important to have legal avenues that survivors can pursue in order to ensure safety for themselves and their children. There are many obstacles to obtaining a civil order of protection despite it being the most common legal option survivors choose to pursue. Survivors must take on the burden of proof and hire their own attorney if they …

Keeping Faith With Nomos, Steven L. Winter

Touro Law Review

No abstract provided.

Broadly Speaking - November, 2019, Nova Southeastern University

Broadly Speaking

No abstract provided.

Broadly Speaking - May, 2019, Nova Southeastern University

Broadly Speaking

No abstract provided.

Shared Deliberations: Learning From The Voices Of Social Justice Lawyers On Their Aspirations, Challenges And Roles, Ian Head

Dissertations, Theses, and Capstone Projects

Lawyers in the U.S. who attempt to advocate for social justice issues, often on behalf of those communities most targeted by government institutions and oppressive legal systems, have unique perspectives into the challenges of using the law to create transformative change. This thesis examines the voices of over a dozen attorneys fighting not only on behalf of their clients, but also wrestling with how to best use a set of legal tools not meant for dismantling systems of power. Listening to how these legal advocates navigate their roles inside a system of laws created to consolidate rather than distribute power …

Harmless Constitutional Error: How A Minor Doctrine Meant To Improve Judicial Efficiency Is Eroding America's Founding Ideals, Ross C. Reggio

CMC Senior Theses

The United States Constitution had been in existence for almost two hundred years before the Supreme Court decided that some violations of constitutional rights may be too insignificant to warrant remedial action. Known as "harmless error," this statutory doctrine allows a court to affirm a conviction when a mere technicality or minor defect did not affect the defendant's substantial rights. The doctrine aims to promote judicial efficiency and judgment finality. The Court first applied harmless error to constitutional violations by shifting the statutory test away from the error's effect on substantial rights to its impact on the jury's verdict. Over …

Broadly Speaking - Fall 2018, Nova Southeastern University

Broadly Speaking

No abstract provided.

Today's Porn: Not A Constitutional Right; Not A Human Right, Patrick Trueman

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

A Duty To Document, Marc Kosciejew

Proceedings from the Document Academy

Access to information is a bedrock principle of contemporary democratic governments and their public agencies and entities. Access to information depends upon these public institutions to document their activities and decisions. When public institutions do not document their activities and decisions, citizens’ right of access is ultimately denied. Public accountability and trust, in addition to institutional memory and the historical record, are undermined without the creation of appropriate records. Establishing and enforcing a duty to document helps promote accountability, openness, transparency, good governance, and public trust in public institutions. A duty to document should therefore be a fundamental component of …

Effective Social Media Use By Law Enforcement Agencies: A Case Study Approach To Quantifying And Improving Efficacy And Developing Agency Best Practices, David T. Snively

Master of Public Administration Practicums

In the wake of protests against law enforcement for an array of reasons, law enforcement officers and agencies have a responsibility to recognize and utilize the available mediums of communication with which they may best develop a connection to the communities they serve. Furthermore, law enforcement agencies must be informed that established, traditional methods of news dissemination – such as press conferences and printed articles – are now both ineffective and under-utilized, replaced in large part by social media live-time reports. For that reason, law enforcement agency executives must address both the responsibility to provide appropriately timed updates to critical …

The Political Implications Of Felon Disenfranchisement Laws In The United States, Katharine G. Connaughton

CMC Senior Theses

This empirical study analyzes the political implications for presidential election outcomes that stem from varying felon disenfranchisement laws within the United States. In the past decade incarceration rates have drastically increased, consequently augmenting the disenfranchised population. This paper focuses on presidential election outcomes and state political party majorities in the election years 2000, 2004, 2008, and 2012. I use demographic characteristics to calibrate assumptions for voter turnout and political party choice among the disenfranchised populations within each state. I then apply these voting populations to historical election outcomes and find that three state political party outcomes change, as well as …

Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram

Philosophy: Faculty Publications and Other Works

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …

Agenda: Drafting Model Laws On Indoor Pollution For Developing And Developed Nations, University Of Colorado Boulder. Center For Energy & Environmental Security, Colorado Natural Resources, Energy And Environmental Law Review

Drafting Model Laws on Indoor Pollution for Developing and Developed Nations (July 12-13)

On July 12 and 13, 2012, experts convened at Colorado Law to demonstrate the extent to which a model law could help address the global problem of indoor air pollution from inefficient cook stoves. The air pollution that results from inefficiently burning biomass as fuel for cooking has serious health and climatic consequences. The workshop produced two sets of Model Laws and commentaries to help nations solve the problem, and the commentaries were published in the Colorado Natural Resources, Energy, and Environmental Law Review.

Drafting Model Laws On Indoor Pollution For Developing And Developed Nations Workshop, July 12-13, 2012, Boulder, Colorado: Introduction, Lakshman Guruswamy

Drafting Model Laws on Indoor Pollution for Developing and Developed Nations (July 12-13)

11 pages.

"This Essay introduces the framework for deliberation and legislative drafting undertaken at the workshop: Drafting Model Laws on Indoor Pollution for Developing and Developed Nations on July 12-13, 2012, in Boulder, Colorado. There are a number of fundamental premises upon which the workshop was based, and this Essay refers to the most salient among them."-- Excerpted from 24 Colo. Nat. Resources, Energy & Envtl. L. Rev. 319 (2013).

Reviewing Racism And The Right To Marry: An Analysis Of Loving V. Virginia, Kathryn L. Jordan

Senior Honors Theses

Prior to the 1967 United States Supreme Court case of Loving v. Virginia, many states had laws that banned the intermarriage of whites with black or other minorities. Since then, the number of interracial marriages has increased and the attitudes of society have shifted. This thesis uses Loving as basis to explore the ways in which societal views have changed since the overruling of the anti-miscegenation statutes. It first discusses the culture in America before Loving and then, explains the details of the Loving case. This is then followed by a synopsis of how the culture changed after Loving. After …

On The Connection Between Law And Justice, Anthony D'Amato

Faculty Working Papers

What does it mean to assert that judges should decide cases according to justice and not according to the law? Is there something incoherent in the question itself? That question will serve as our springboard in examining what is—or should be—the connection between justice and law. Legal and political theorists since the time of Plato have wrestled with the problem of whether justice is part of law or is simply a moral judgment about law. Nearly every writer on the subject has either concluded that justice is only a judgment about law or has offered no reason to support a …

Non-State Actors From The Perspective Of The Policy-Oriented School: Power, Law, Actors And The View From New Haven, Anthony A. D'Amato

Faculty Working Papers

Law needs Power for enforcement of its rules; Power utilizes Law for creating conditions of stability that enhance its salience. Yet when the New Haven school tries to include international law in its power-oriented view of international relations, it ends up with a misleading two-dimensional descriptivism.

All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies And The Rule Of Law, Keith J. Bybee

College of Law - Faculty Scholarship

This paper contains the introduction to the new book, All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies and the Rule of Law (Stanford University Press, 2010).

The book begins with the observation that Americans are divided in their beliefs about whether courts operate on the basis of unbiased legal principle or of political interest. This division in public opinion in turn breeds suspicion that judges do not actually mean what they say, that judicial professions of impartiality are just fig leaves used to hide the pursuit of partisan purposes.

Comparing law to the practice of common courtesy, the …

Broadly Speaking - April, 2002, Nova Southeastern University

Broadly Speaking

No abstract provided.

Broadly Speaking - January, 2002, Nova Southeastern University

Broadly Speaking

No abstract provided.